Pages

Thursday, January 3, 2013

Two Important Techniques For a Defense Opening in a Criminal Trial

By
J. John Sebastian There are two important steps to delivering a powerful opening
statement as defense counsel in a criminal jury trial. The first is to
declare your client's innocence. The second is to show the jury the
prosecutor is NOT a witness and is simply telling a story.

I. Declaring your client's Innocence
It
seems like it would be common sense for an attorney to tell the jury,
somewhere in the opening statement, that his or her client is "not
guilty" of the charges. However, this step is often overlooked, even by
experienced advocates.

Many attorneys will dance around this issue
and never come right out and tell the jury "my client is NOT GUILTY!"
Instead they will talk about reasonable doubt and all of the weaknesses
in the State's case, but never tell the jury what the defense's position
is in the case.
Instead consider this approach:

"Ladies and
gentlemen of the jury, it is very important that you understand what
our position is in this case. It is very important that you understand
our position right from the very beginning of this trial... and our
position in this case is that Bobby is NOT GUILTY... he is innocent, he
did not do what the State is accusing him of!!"

The jury needs to
know, right from the outset, that your client's position in the case is
that he is not guilty and has requested a jury trial because of that.

II. The Prosecutor is "not a witness... "
Certainly,
the prosecution will lay out its version of the evidence in the
opening. Of course if the jury were to accept that version of the facts
without further inquiry the verdict would overwhelmingly be guilty.
However, there is a technique you can use here to attack the prosecutors
opening and neutralize its effect on the jury.

Consider saying something like this:

"I would like to complement the prosecutor on a very well organized opening statement.
And
as I was listening to the prosecutor, I said to myself... 'well If the
case is really that straight forward and the prosecutor says Bobby is
guilty and he has all the evidence, why don't we just end it here and
vote a verdict right now?'

But, then I remembered one very
important FACT:... The prosecutor, in THIS CASE IS NOT A WITNESS!!... he
wasn't on Main and State on the date they allege the incident took
place...

"He only has a story that he has been TOLD!!!... And how
many times ladies and gentlemen have you been told a story that turns
out to be untrue?

How many times have you opened a newspaper or read a story online, and found out later the story was FALSE?"

I submit to you it is a daily occurrence!!!"

"That's right members of the jury the prosecutor is not a witness in this case!!!"

These
two techniques will neutralize a prosecutor's powerful opening, catch
the jury's collective attention, and pave the way for you to lay out the
defense version of the case in the balance of your opening statement.